ARNICA INTERNATIONAL Vs. PARNEET SINGH BAINS

JUDGEMENT

(1.) This appeal has been preferred against the order of learned MM dated 12.1.2005 whereby the complaint of the appellant was dismissed in default since no one appeared for the complainant on that date.

(2.) Notice of this appeal was sent to the respondent at House No.147, Sector-15A, NOIDA, UP, where father of the respondent refused to accept the notice on the ground that respondent was a tenant in the house and he was now not living there. The courier came back with the refusal report. A notice was also sent through the District Magistrate, Gautam Budh Nagar. District Magistrate, Gautam Budh Nagar got the notice served and wrote a letter to the Registrar General of this Court that notice has been got served through police and copy of the complaint was also annexed with the notice. An affidavit of service was also filed by the appellant and this Court vide order dated 14th March, 2006 observed that the respondent shall be deemed to have been served. However, fresh notice was again sent to the respondent through courier, of which service report did not come back. I consider that the respondent has been sufficiently served and there was no necessity of fresh notice being sent to the respondent.

(3.) I have heard the counsel for the appellant. A perusal of the order dated 12th January, 2005 passed by the learned MM would show that this date was fixed for the complainant's evidence as last opportunity and since the complainant did not appear, the complaint was dismissed. The appellant has stated that non-appearance of the complainant was due to wrong noting of the date. The complainant had noted the date of 12th February, 2005. An affidavit has been filed by the advocate of the complainant that date noted by the Advocate in the diary was 12th February, 2005 and since 12th February, 2005 was second Saturday, the complainant came to the court on 14th February, 2005 and learned that the matter was already dismissed on 12th January, 2005. A copy of the diary of 4th September, 2005 (previous date) has been filed wherein the matter is shown to have been adjourned to 12th February, 2005. It is submitted by the appellant that the non-appearance of the appellant was due to this wrong noting of the date and it was not deliberate. A prayer is made for allowing the appeal and for restoration of the complaint.